Appeal of LYNDA ALEXANDER from action of the Board of Education of the South Orangetown Central School District and Joseph Zambito, Superintendent, regarding tenure.

Decision No. 15,172

(February 16, 2005)

James R. Sandner, Esq., attorney for petitioner, Neil J. Dudich, Esq., of counsel

Kuntz, Spagnuolo, Scapoli & Schiro, PC, attorneys for respondents, Mario L. Spagnuolo, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the South Orangetown Central School District ("respondent board") and its superintendent to terminate her services. The appeal must be sustained.

Prior to 1993, petitioner held a teaching certificate issued by the State Education Department in elementary education. In 1993, petitioner became employed by the Ramapo Central School District ("Ramapo") not as a teacher, but as a teaching assistant, although she held a teaching certificate. She was granted tenure as a teaching assistant in Ramapo effective October 24, 1996, and continued to work in Ramapo until the spring of 2000, when she acquired an additional teaching certificate in general special education.

Petitioner became employed by respondent board in 2001, when she was given a three year probationary appointment as a teacher of special education effective September 1, 2001. At the time petitioner was appointed, respondent board was aware that she had previously received tenure in Ramapo as a teaching assistant, but it also appears that petitioner did not request a shorter probationary term than the three year term to which she was appointed. Petitioner taught continuously in the South Orangetown Central School District ("Orangetown") from September 1, 2001, until February 14, 2003, when she took maternity leave for the balance of that school year. She returned to full time teaching in September 2003, and continued as an Orangetown employee until her services were terminated on June 30, 2004, in accordance with the procedures governing dismissal of probationary employees. This appeal was commenced on July 27, 2004, and interim relief was denied on August 16, 2004.

Petitioner claims that her rights under Education Law �3012 were violated. Education Law �3012(1)(a) provides in pertinent part:

Petitioner claims that her prior grant of tenure in Ramapo legally reduced her probationary period to two years in Orangetown, and that her two-year probationary period, after subtracting the maternity leave of spring 2003, was completed near or at the end of the fall 2003 term. Petitioner claims that respondents failed to take the action required by law to grant or deny tenure, and permitted her to teach beyond the expiration of her probationary term. Thus, petitioner argues that when she completed her two-year probationary period, she acquired tenure by estoppel, had a protected property right in her position, and could not be legally discharged except for cause in accordance with Education Law �3020-a.

Respondents argue that acquiring prior tenure as a teaching assistant does not reduce the probationary term for a teacher pursuant to Education Law �3012(1)(a). Respondents further contend that, because petitioner failed to request or demand a reduced probationary term in September 2001, she cannot now seek equitable relief of tenure by estoppel.

No party to this appeal has cited any case in which a New York educator has first received tenure as a teaching assistant, then claimed a shortened probationary period when later appointed as a teacher. Petitioner�s position is that Education Law �3012(1)(a) must be read literally, i.e., that petitioner was appointed as a teacher effective September 1, 2001, that she had been previously "appointed on tenure in another school district within the state," and, as a result, her probationary appointment may not exceed two years. Respondents argue that the statute should be read to require that the prior tenure appointment must have been as a teacher, because a teacher�s required qualifications and duties differ substantially from those of a teaching assistant, and a person holding prior tenure as a teaching assistant has never been previously evaluated as a teacher. Respondents argue that a shortened probationary period only makes sense where the teacher has previously "endured the rigors of the teacher tenure process in another district" and "has performed well enough to be awarded tenure as a teacher."

I find respondents� arguments persuasive, but I am constrained to sustain the appeal because of the holding in Matter of Gould v. Board of Educ. (81 NY2d 446), which I believe is controlling. In Gould, petitioner was granted tenure as an elementary school teacher in New York City in 1965. Twenty-one years later, she applied for and obtained a position in the Sewanhaka Central High School District as a special education teacher. Her application indicated that she had previously obtained tenure in New York City, but on September 1, 1986, she was given a three-year probationary appointment.

On February 24, 1989, after serving more than two years, she was advised that she would not be recommended for tenure and would be terminated on June 23, 1989. Petitioner then elected to resign her position after being assured that the negative tenure recommendation would not be placed in her personnel file. Thereafter, petitioner sought to rescind her resignation claiming that she had obtained tenure by estoppel before she resigned because she should have been given only a two-year probationary appointment.

Supreme Court granted petitioner�s Article 78 petition, but the Appellate Division, Second Department, unanimously reversed (184 AD2d 640). The Court of Appeals then unanimously reversed the Appellate Division (81 NY2d 446). In a sweeping decision by Judge Hancock, the Court of Appeals held, at pp. 450-451:

"Teachers * * * shall be appointed * * * for a probationary period of three years; provided, however, that in the case of a teacher who has been appointed on tenure in another school district within the state, * * * and who was not dismissed from such district or board * * * the probationary period shall not exceed two years" (emphasis added).

The language of the section is plain and the meaning unambiguous. Because of petitioner�s previous tenure in New York City, the acquired term of her probationary service had been reduced from three years to two years. The statute itself is self-executing. It makes no difference that her tenured status was in a different tenure area in another school district or that she had left her tenured position more than 20 years before. Thus, after September 1, 1988, she was eligible to acquire tenure.

Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of [the] probationary term" (Matter of Lindsey v Board of Educ., 72 AD2d 185, 186). Here, petitioner�s required probationary period had unquestionably been reduced from three years to two years. Although the Superintendent and the Board had constructive knowledge of the facts pertaining to petitioner�s 1965 tenure from the information contained in her application, they were presumably not cognizant of the legal implications of continuing to employ petitioner beyond September 1, 1988 when her two years of probation ended. Respondents were, however, concededly aware of the operative facts�petitioner�s continuing service as a teacher in the District�s employ. It is of no legal significance that respondents did not know that petitioner�s continued employment would enable her to acquire tenure by estoppel (see, Lindsey, supra; Matter of Dwyer v Board of Educ., 61 AD2d 859).

As in Gould, there is no question here that petitioner received prior tenure (although here as a teaching assistant rather than as a teacher) in a different tenure area in another school district. Respondent does not deny that it knew of the prior award of tenure at the time of petitioner �s probationary appointment. And petitioner served more than two years as a probationary teacher, even allowing a deduction for maternity leave (see, Matter of Mulholland, 70 Misc 2d 852, aff�d 41 AD2d 704, and cases cited therein, suggesting that time spent on maternity leave does not count toward fulfilling the probationary period), before her dismissal on June 30, 2004.

The only significant difference between Gould and this case is that here petitioner received prior tenure as a teaching assistant, not as a teacher, and the parties differ as to the meaning of the word "tenure" in these circumstances. McKinney�s Consolidated Laws of New York, Book 1, Statutes �76, provides:

Some statutes are framed in language so plain that an attempt to construe them is superfluous. The function of the courts is to enforce statutes, not to usurp the power of legislation, and to interpret a statute where there is no need for interpretation, to conjecture about or to add to or to subtract from words having a definite meaning, or to engraft exceptions where none exist are trespasses by a court upon the legislative domain.

While the word "teacher" has a somewhat fluid meaning in the Education Law (see, e.g., Matter of Madison-Oneida BOCES v. Mills, 2 AD3rd 1240; aff�d ____ NY3d ___, December 21, 2004), the word "tenure" does not. If the Legislature intended to exclude prior tenure as a teaching assistant for purposes of a shortened probationary period, it could simply have done so. To carve out an exception to the clear phrase "in the case of a teacher who has been appointed on tenure" with respect to prior tenure as a teaching assistant would be an incursion on the province of the Legislature, and I decline to do so.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that petitioner acquired tenure by estoppel prior to her termination; and

IT IS FURTHER ORDERED that petitioner be restored to a tenured position in the general special education tenure area; and

IT IS FURTHER ORDERED that respondent board pay to petitioner back pay and benefits retroactive to June 30, 2004, less any compensation she may have otherwise earned.

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